Opinion
04 Civ. 3449 (JES).
May 2, 2005
SUMMARY ORDER
The above-captioned action having come before the Court, and defendants having submitted their Motion for Summary Judgment dated December 7, 2004, and plaintiff having submitted his Response to defendants' Motion and his Cross-Motion for Summary Judgment dated April 25, 2005, and the Court having considered all matters raised, and
WHEREAS, having found that plaintiff did not prove that he had good moral character, defendant Bureau of Citizenship and Immigration Services denied plaintiff's application for naturalization on August 23, 2003, see Decl. of F. James Loprest, Jr., dated Dec. 7, 2004, Ex. A ("Record"), at 1, 5, and
WHEREAS this Court has been empowered to conduct a de novo review of the Bureau of Citizenship and Immigration Services' denial of an application for naturalization, 8 U.S.C. § 1421(c), and
WHEREAS, as a prerequisite to naturalization, plaintiff has the burden of establishing that he "has been and still is a person of good moral character," 8 U.S.C. § 1427(a)(3), and
WHEREAS an applicant for naturalization who "at any time has been convicted of an aggravated felony (as defined in subsection (a)(43))," 8 U.S.C. § 1101(f)(8), shall be precluded from showing that he is a person of good moral character, 8 U.S.C. § 1101(f); 8 C.F.R. § 316.10(b)(ii); see Boatswain v. Ashcroft, 267 F. Supp. 2d 377, 385-86 (E.D.N.Y. 2003); see also Castiglia v. Immigration Naturalization Serv., 108 F.3d 1101, 1102-04 (9th Cir. 1997), and
WHEREAS there is no dispute that plaintiff was convicted of attempted criminal sale of a controlled substance in the third degree in violation of New York Penal Law section 220.39, see Record at 5, 91; Pl.'s Rule 56.1 Statement ¶ 3, and
WHEREAS there is no dispute that plaintiff's conviction is an aggravated felony as defined by 8 U.S.C. § 1101(a)(43), see Pl.'s Mem.; Defs.' Mem. at 14, and
WHEREAS summary judgment is appropriate when "there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law," Fed.R.Civ.P. 56(c); it is
ORDERED that defendants' Motion shall be and hereby is granted and plaintiff's Cross-Motion shall be and hereby is denied; and it is further
ORDERED that the Clerk of the Court is directed to close the above-captioned action.